Arbitrator: City ordinance could not modify firefighters pension plan set forth in cba

Arbitrator Michel Ryan has upheld a grievance filed by IAFF Local 2748 against the City of Warwick, RI. (here)

 The grievance asserted that the City had unilaterally modified the firefighter's pension plan through passage of a City ordinance creating a two tier plan applicable to new hires.  Arbitrator Ryan initially rejected the City's claim that the grievance had not been filed in a timely manner, accepting the Union's explanation that it waited to file the grievance to see if the City would in fact implement the new plan. He noted further that, in any event, the grievance was timely "as a 'continuing' violation, which would have the same remedy because nothing actually changed more than 30 days before the grievance was filed."

On  the merits, he concluded that "There is really no dispute that the two-tier plan under the Amended Ordinance violates the CBA." He rejected the City's claim that, as a matter of law, the ordinance superseded the CBA, and noted further that the changes made by the ordinance had been "specifically and repeatedly" rejected during collective bargaining.

He concluded:

     As a general matter, the task of a labor arbitrator is to interpret and apply the collective bargaining agreement. The grievance-arbitration forum is not a court of general jurisdiction, and the expertise and authority of arbitrators do not extend to construing statutes and court precedent. More specifically, the parties here have agreed, in Article XII, §1, that the contractual grievance procedure "involv[es] the interpretation, application or alleged violation of the provisions of this Agreement and/or the rules and regulations of the Fire Department." This language does not include external law.
     Since the two-tier plan under the Amended Ordinance violates the CBA, we find for the Union on the merits issue. As a remedy, we will order the City to cease any enforcement or implementation of that plan, to comply with the terms Article XIV, and to make whole all affected members of the bargaining unit.

The City representative on the panel dissented.

Medical marijuana, arbitration and the courts

In two recent decisions courts have vacated arbitrators' awards reinstating employees dismissed for use of marijuana. Both cases discuss the impact of medical marijuana legislation.

In Freightliner v. Teamsters Local 305 the U.S. District Court for Oregon granted the Company's request to vacate the award of Arbitrator Carlton Snow based primarily on the Arbitrator's reliance on the Oregon Medical Marijuana Act in contravention of what the Court believed to be the governing language of the cba.

Grievant had been employed as a material handler. After his involvement in a forklift accident he was required to submit to a drug test. On the day he took the drug test, grievant informed the Company that he had a prescription for medical marijuana that he had obtained a couple of months earlier. The results of the drug test showed that grievant was "under the influence" as defined in the Company's drug policy, which was expressly incorporated into the cba. The policy provided that being "under the influence" was cause for suspension or termination. As a result of the positive result, and his claimed failure to comply with the Company's notification requirement for prescription drugs, grievant's employment was terminated.

The termination was grieved and submitted to arbitration before Arbitrator Snow. Arbitrator Snow found that grievant was in fact under the influence as defined in the policy, but found further that there was no evidence that his work performance was impaired. According to the Court, the Arbitrator concluded that "in light of [Oregon's Medical Marijuana Act] an employer cannot 'discipline an employee (1) who ingests marijuana pursuant to a valid prescription, (2) does so on his or her own time, and (3) reports to work in an unimpaired state of being." Accordingly the Arbitrator upheld the grievance and ordered the grievant's reinstatement. Freightliner sought to vacate the award on the basis that the Arbitrator had exceeded his authority by relying on the Medical Marijuana Act, and that the award violated public policy.

In ruling on cross motions, the Court concluded that the Arbitrator "cited no credible internal authority [in the cba] justifying his reliance on the Marijuana Act and resultant disregard of the CBA's plain language about marijuana use." The court further concluded that the Arbitrator misread the law to provide affirmative workplace protection, noting that he:

seemed to suggest ... the Act permits parties to a CBA to regulate marijuana use only insofar as employers may forbid actually impaired employees from working. Snow, however, cited no statutory authority for the proposition the Act restricts how parties to a CBA may choose to treat marijuana use. Nor did Snow meaningfully link that proposition to the Act's workplace provision. Instead, he effectively applied his own notions of what the law should be, an approach tantamount to "ignoring" the law.

Finding that the award did not represent a "plausible" interpretation of the contract the Court granted Freightliner's motion to vacate. In light of this finding, the Court did not reach the public policy question.


In contrast, public policy was the primary basis for the decision of the Connecticut Superior Court in State of Connecticut v. Connecticut Employees Union Independent. Grievant had been arrested for smoking marijuana while at work in a state owned vehicle. His employment was terminated, and the termination was grieved and submitted to arbitration. The arbitrator found that the termination was not "within a proper range of progressive discipline" and modified the termination to a six month suspension and ordered the grievant's reinstatement. The State sought to set aside the award "on the grounds that the award violates the State's public policy on drug use while on state duty and operating a state owned vehicle."

The court first determined that there was a well defined public policy against the use of marijuana. It rejected plaintiff's contention that this public policy was diluted because of the state's implementation of its medical marijuana law. The court observed:

Although the defendants are accurate in stating the law, nothing in the records indicate that the grievant was prescribed marijuana. The arbitrator, in his award and opinion, makes no finding that the grievant was prescribed marijuana or that it was medically necessary for him to use marijuana to treat his depression and anxiety. As this court's review is limited to the facts as found by the arbitrator, the arbitrator's award cannot be confirmed on this ground.

On the merits the court concluded:

Similar to the findings of the arbitrator in AFSCME, Council 4, Local 387 , the arbitrator in the present case noted that the grievant's use of marijuana allegedly stemmed from "a number of stressors before and after the time he used marijuana." ... In addition, as noted by the court in AFSCME, Council 4, Local 387, AFL-CIO,, a progressive sanction of reinstatement suggested by the arbitrator in the present case would send the message that stress experienced in one's personal life somehow excuses the use of marijuana in the workplace. Thus, the arbitrator's award in the present case violates a clearly defined public policy.
 
Update: The Connecticut Supreme Court (here) reversed the decision of the Superior Court and upheld the decision of the arbitrator. The Court's decision is discussed at Drugs in the workplace, reinstatement and public policy. Connecticut Supreme court upholds arbitrator's award

Does public policy require termination of a state trooper who had a sexual encounter with a domestic violence victim?

The Supreme Court of Alaska has rejected a public policy challenge to the decision of an arbitrator upholding a grievance filed on behalf of a State Trooper dismissed for engaging in consensual sex with a domestic violence victim.

Grievant entered the academy in February of 2008. Following field training and the expiration of his probationary period he was promoted to the position of State Trooper in March of 2009. The incident in issue took place in April 2009. Grievant was called to assist another Trooper in the investigation of a claim of domestic violence. While the first Trooper interviewed the husband, Grievant spoke with the victim. According to Grievant, the victim began to flirt with him and asked for his personal cell phone number, but he refused to provide it. The husband was arrested and charged with assault. Early the next morning, while off duty, grievant texted his cell phone number to the complainant. The complainant called grievant, who then went to her home where they had consensual sex.

Subsequently complainant told her husband of her actions. He in turn told his defense attorney who told the district attorney. The state conducted an investigation of grievant's actions. Grievant's supervisor recommended that he be suspended, but the Director of State Troopers decided instead to terminate his employment.

The dismissal was grieved and submitted to arbitration. The Arbitrator concluded that that the State had not engaged in progressive discipline, that previous instances of sexual misconduct had not resulted in termination, and that if the State intended to apply a zero tolerance policy it needed to inform the troopers. While finding the grievant had engaged in unprofessional conduct and had shown poor judgment she reduced the dismissal to a suspension and ordered the grievant's reinstatement.

While the arbitration was pending, the State also sought, through the State's Police Standards Council, revocation of grievant's basic police certificate. Possession of a certificate is a requirement for every state trooper. An administrative law judge found revocation warranted, and the Police Standards Council voted to revoke grievant's certificate.

The State filed a complaint, seeking to set aside the arbitrator's award as being the result of gross error, and because, the State claimed, it was contrary to public policy. The Superior Court upheld the arbitrator's award in part. It rejected the State's public policy argument, but concluded that the revocation of grievant's certificate precluded his reinstatement. Accordingly, it upheld the award of back pay from the time of termination to the date of the revocation of the certificate. It declined to uphold the ordered reinstatement.

The State appealed, and the Alaska Supreme Court has affirmed the decision of the superior court. In rejecting the State's arguments, the Court observed:

the correct question is not whether the Trooper-Grievant's conduct violated public policy; rather, it is whether the arbitration award of reinstatement with back pay itself violates an "explicit, well-defined, and dominant public policy." Although we cannot disagree with the State that the Trooper-Grievant's conduct was censurable, we also cannot overturn an arbitrator's decision if that decision does not violate an explicit, well-defined, and dominant public policy. We therefore must affirm the superior court's decision to uphold the arbitrator's award in part.

In reaching its decision the Court noted several cases from other jurisdictions rejecting efforts to set aside arbitrators' awards reinstating law enforcement officers who had consensual sex with a witness or informant. (Monroe County Sheriff v. Fraternal Order of Police;  Bureau of Maine State Police v. Pratt;  City of Lincoln Park v. Lincoln Park Police Officers Ass'n)

Because it agreed with the lower court that grievant could not be reinstated without a police certificate, however, it also affirmed the lower court's refusal to enforce that portion of the award ordering grievant's reinstatement.

The Court's decision, State v. Public Safety Employees Association, can be found here.

Incorporation of statute into cba sufficient to trigger Penn Plaza

In its decision in 14 Penn Plaza v. Pyett, the Supreme Court held that a union may agree in a cba that an employee's statutory claims are subject exclusively to the contract's grievance procedure, and that the employee may not pursue the claim in court. Such an agreement, however, must be evidenced by clear and unmistakable language demonstrating such an intent.

 Subsequent cases interpreting Penn Plaza have held that general non discrimination language is insufficient to prevent an employee from pursuing litigation over a statutory claim. In Ibarra v. United Parcel Service the Fifth Circuit determined that for a cba to bar litigation, the cba must "at the very least, identify the specific statutes the agreement purports to incorporate or include an arbitration clause that explicitly refers to statutory claims." In its recent decision in Gilbert v. Donohoe, the Fifth Circuit has addressed a cba that it finds "falls between" the language discussed in Penn Plaza, and that in subsequent cases finding no waiver. 

Plaintiff Gilbert sought to litigate claims that the USPS had violated her rights under the FMLA, and the Rehabilitation Act. Reversing, in part, the District Court's decision, the Fifth Circuit has determined that the contract in issue precluded litigation of the Rehabilitation Act claims, but not the FMLA ones.

The contract provided for a dispute resolution procedure culminating in binding arbitration. Separately the cba provided "consistent with the other provisions of this Agreement, there shall be no unlawful discrimination against handicapped, as prohibited by the Rehabilitation Act." The contract also incorporated the Employee and Labor Relations Manual (ELM) which, according to its terms, "provides policies to comply with the [FMLA]."

Noting that the contract could be said to reference both statutes, the Court found the nature of the references distinct, resulting in differing results. 

...the ways in which the agreement identifies the respective statutes are distinct, and this difference guides our resolution of this case. Section 2.01(B) of the CBA specifically provides that it is incorporating into the agreement the prohibition of discrimination against handicapped employees contained in the Rehabilitation Act. It thus complies with the dicta of both Ibarra and Wright that the CBA “identify the specific statutes the agreement purports to incorporate.” 26 Combined with Article 15, this provision makes it clear and unmistakable that the Rehabilitation Act is part of the CBA and subject to the same grievance procedures. By contrast, the ELM only provides policies to comply with the FMLA. It does not purport to make the FMLA a part of the agreement. As our sister circuits have recognized, references to statutes that fall short of incorporation are insufficiently “clear and unmistakable” to bar access to federal court. 27 There is no reason to treat this reference any differently. Accordingly, we hold that, while the CBA requires Gilbert to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures, its references to the FMLA are not sufficiently clear and unmistakable to deprive the district court of subject matter jurisdiction over claims arising under that statute.

The Court therefore affirmed the dismissal of plaintiff's Rehabilitation Act claims, but reversed the dismissal of the claims under the FMLA.

Arbitrator finds firefighter minimum staffing grievance not subject to arbitration

The contract between the City of Pawtucket, Rhode Island and the Pawtucket Firefighters union called for a minimum staffing level of 30 firefighters on duty at all times. Because of fiscal constraints, the City unilaterally reduced the agreed upon staffing levels "for overtime purposes only"; i.e. it would not utilize overtime to bring the staffing to the contractually called for minimum. It also reduced the deployment of firefighting equipment below the level called for by the contract. The Union grieved these actions and sought to arbitrate the dispute. The City challenged the arbitrability of the grievance, asserting that the deployment of particular numbers of fire apparatus  and level of service decisions involved matters of "inherent management prerogative" and "entrepreneurial control", neither of which is appropriate for collective bargaining. The Union maintained that the City's actions involved mandatory subjects of bargaining and breached the clear and unambiguous language of the collective bargaining agreement.

Arbitrator Marc Greenbaum found the Union's grievance "not substantively arbitrable".  Arbitrator Greenbaum observed:

In what seems like ancient history, the role of the arbitrator was understood to be limited to contractual interpretation. The arbitrator’s expertise was in the "law of the shop", not external law. The previously impermeable barrier between contact and law has, however, been eroded by numerous factors. The increasing regulation of individual employment rights has poked holes in the barrier. See 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). A similar result has flowed from judicial decisions deeming issues routinely bargained in the private sector, as outside the scope of public sector collective bargaining and arbitration.

While rejecting the City's arguments that the language of the contract could be interpreted as not requiring the City to maintain minimum levels of equipment and personnel, the Arbitrator concluded that "Rhode Island courts would find that the promises contained in Article XVI of the Agreement cannot be enforced in the arbitral forum." Whether called matters of entrepreneurial control, or inherent management prerogative, the Arbitrator noted that Rhode Island courts had limited a public employer's ability to contract away certain discretionary management decisions.

The Arbitrator recognized that the Union and its members may feel cheated "by a result that effectively renders a contract provision that was freely negotiated with the City unenforceable in arbitration,"  but determined that the judicial decisions trump the collective bargaining process.

Ethan Shorey reports on the decision for the Valley Breeze, Arbitrator rules for the city on minimum fire manning and links to the Arbitrator's award.

Arbitrator correctly limited analysis to contract despite arguably conflicting City ordinance

A majority of the Court of Appeals of Indiana has reversed the trial court and enforced the  award of Arbitrator Edward Archer finding the City of Gary improperly refused to follow its contract concerning bumping.  Wright and AFSCME, Council 62, Local 4009 v. City of Gary, Indiana.

The Union was recognized in the contract as representative of a unit of “employees of the City of Gary, Gary Park Department, and Gary Health Department, as noted in the job classifications in Schedule A…” The unit excluded “confidential “employees as defined in a city ordinance.

After her position was eliminated, an employee sought to bump another employee, an administrative assistant to the Gary Fire Civil Service Commission (GFCSC), whose job title was among those included in Schedule A.  The employee was interviewed by the Chair of the GFCSC and determined to be qualified. Shortly thereafter, however, the City asserted that the administrative assistant position, despite its inclusion on Schedule A, was non union and it was a confidential position. The arbitrator rejected both of these contentions and upheld the grievance.

Seeking to set aside the award the City sought review, arguing that the Arbitrator had exceeded his authority and had imposed a remedy on an entity not a party to the contract. The City maintained that the inclusion of the administrative assistant position in the unit had been in error, and that a separate city ordinance had vested the GFSCS, a non party to the contract, with the sole authority to select the person who would fill that position.  The trial court agreed with the City, finding that the Arbitrator had ignored the city ordinance.

Reversing the trial court decision, a majority of the Appeals Court found that the Arbitrator correctly limited his decision to interpretation of the contract.  The court noted “An arbitrator exceeds his powers if his decision is based solely on the arbitrator’s view of the requirements of enacted legislation rather than on an interpretation of the collective bargaining agreement.”  Any damage suffered by the GFCSC by virtue of the inclusion of the administrative assistant position in the unit was an issue between the City and the GFSCS and not properly an issue before the arbitrator. The court also rejected the City’s challenge to the Arbitrator’s conclusion that the position was not confidential, noting that while the assistant did have access to personnel records, they were records of employees represented by a different union.

Statute incorporated into collective bargaining agreement subject to arbitration

The collective bargaining agreement between the Town of Saugerties and the Town Of Saugerties Policeman's Benevolent Association contained a provision that the Town "agrees to comply with the requirements of Section 971 of the Unconsolidated Laws of New York." That statute limited the ability of the Town to require a police officer to work in excess of 8 hours in a 24 hour period. The Union sought to arbitrate a dispute about the application of this provision, and the Town sought a court order staying the arbitration. The Town argued that resolution of the grievance would require application or interpretation of the terms of the statute and maintained that public policy would not allow an arbitrator to do so.

Affirming the lower court, the New York Appellate Division rejected the Town’s claims. It noted that the incorporation of the statute makes it a substantive provision of the agreement, and that no public policy precluded its interpretation by an arbitrator.  As it was clearly covered by the arbitration provision of the agreement there was no basis for a stay. 

The court’s decision can be found here.